SAJJAD HUSSAIN Versus THE STATE

Cr. B.A. No. 54 of 1997, decided on 20th January, 1997.

ORDER

DR. GHOUS MUHAMMAD, J. - This order- will dispose of bail application submitted on behalf of accused Sajjad Hussain who is a senior civil servant(Grade 22) and was Chairman of Pakistan Steel Mills Corporation Karachi (hereinafter referred to as the Corporation). He is involved in a case under Section 409/109/34 PPC read with Section 5(2) of Act-II of PCA-1947 registered at P.S.F.I.A. State Bank Circle Karachi on 11th December, 1996 on behalf of the State through Inspector Illahi Bux Tunio (vide FIR No. 17/1996). His bail application was rejected by the learned Special Judge (Central) II, Karachi on 4.1.1997. The F.I.R, reads as under:-

"Consequent upon an enquiry instituted in FIR/Crime Zonal Office, Karachi vide No. 19/1996 conducted by Assistant Director Khaliquz Zaman of FIA/CC-I, Karachi regarding procurement of 3rd Converter for Steel Mills Corporation, Karachi it is revealed that It. Gen. (Rtd.) Sabeeh Qamaruz Zaman while posted as Chairman Pakistan Steel Mills, Karachi in the year 1992/93 in collusion with Habibullah Siddiqui, Director (Procurement) fraudulently and with criminal intent manipulated the purchase of 3rd Converter which was not required. In this connection they invited the services of M/s. Mercury Corporation owned by one Mr. Asif of Karachi with whom he came in, contract during his visit of Russia and whom the contract was awarded contrary to the settled rules & procedure meant for such issue. In this regard a sum of Rs. 135 million was paid to M/s. Mercury Corporation as mobilization advance against bank guarantee in three instalments with effect from 30.8.1993 to 12.10.1993 but the contractual commitment wa- not fulfilled and amount was misappropriated without any material progress. The accused Asif of Mercury Corporation who did not deal in Machinery and being the sole Garment Dealer exported from Pakistan to Russia on barter system and was facing some problem with the realization of their export bills and the Russian Government was inclined to make payment in the shape of Machinery/Hardware. The accused Sabeeh Qamaruz Zaman facilitated the accused Asif of Mercury Corporation by placing an order of 3rd Converter for realization his outstanding export bills from Russia.

Subsequently accused Hussain during his posting as Chairman Pakistan -Steel Mills Corporation,' Karachi also availed the opportunity and facilitate him in the same manner by extending advance payment of R.40 million without any lawful justification with the connivance of Director (Finance) S.M. Abbasi and other Officers of P.S.M.C., Karachi and thereby used the funds of Pakistan Steel Mills for their pecuniary advantage and for the advantage of co-accused Asif of Mercury Corporation. Thus, a total loss caused to the Pakistan Steel Mills is more than 175 million.

It is thus established that the accused persons being employees of the Pakistan Steel Mills Corporation and employees of Federal Government and custodian of the Public funds willfully and deliberately by abusing their official position as such public/Government servant in active collaboration with accused Asif of M/s. Mercury Corporation Karachi committed the act of criminal breach of trust to the tune of Rs. 175 million without including interest and related financial factors and thus committed the offence punishable u/s. 409/109/34 PPC r/w Section 5(2) Act-ll of PCA, 1947. Hence registration of this case."

2.I have heard Mr. I.A. Hashmi learned counsel' for the applicant/accused and Mr. Ikram Ah riled Ansari learned D.A.G, for State and also perused the record.

Learned counsel for the applicant submitted that the actual contract for procurement of third converter for the Corporation was signed by the then Chairman It. Gen. (Rtd.) Sabeeh Qamaruz Zaman and it was awarded to M/s. Mercury Corporation owned by one Mr. Asif (who is, still absconder). In this regard a sum of Rs. 135 million was paid to the contractor from 30.8.1993 to 12.10.1993 but the contractual obligations were not fulfilled and thus allegedly the amount was misappropriated but the present applicant has nothing to do with that part of the prosecution story. He further submitted that the applicant/accused remained posted as Chairman of the Corporation from April to November, 1995 and during this period some parts of the converter were imported to save loss to the Corporation. In this regard he referred to the following clauses of the agreement:

"(a) Due to complete distortion and disorganisation of banking system in Russia/Ukraine international trading observing the recognized para-meter is not possible which new requires payment in cash so that machinery could be shipped.

(b)Deduction of performance Bank Guarantee against running bills and deduction of E/Ds in patently force-majeure.

(c)Deduction of unjustified Sales Tax."

3.The second contention of the learned defence counsel was that prior to the lunching of criminal proceedings the Corporation also filed suit for recovery of Rs. 643,300,000/- against three defendants-namely M/s. Mercury Corporation, S.A. Sajjad Hussain (the present applicant) and S.M. Abbasi (former Director Finance of the Corporation). That suit is still pending in this Court and during the pendency of civil proceedings the criminal proceedings are liable to be stayed. His third contention was that the applicant was detained for 30 days under the Maintenance of Public Order on 26.11.1996 without any justification and evidence. Lastly he submitted that the main culprit who had initiated and manipulated procurement of the third converter without any justification was It. Gen. (Rtd.) Sabeeh Qamaruz Zaman but no action has been taken against him. The learned counsel supported his submissions by citing (i) Sarfraz and 2 others v. The State (PLD 1974 Lahore 196), (ii) Ijaz Akhter v. The State (1978 SCMR 1964), (iii) Abdul Haleem v. The State and another (PLD 1982 SC 488) and (iv) Saeed Ahmed v. The State (1996 SCMR 1132).

4.In Sarfraz and 2 others v. The State a learned single Judge held that ordinarily merely because Government property or national interest is involved in a case, is no bar to grant bail. It was further held that in exceptional cases where bail might be refused can be of different types e.g., when the accused becomes fugitive from law before he is apprehended or surrenders to lawful custody and/or is likely to abscond if released on bail; there is apprehension of the accused otherwise misusing the concession of bail; it would be to the prejudice and detriment of the prosecution or the dictates of justice, for example, when the recoveries are to be affected or there is likelihood of the repetition of a crime and where the grounds in the shape of evidence are so strong that the Court believes that the accused is guilty; bail might be refused in such cases. In Ijaz Akhter v. The State the accused had allegedly embezzled a large amount and Rs. 1,70,000/- were recovered from him but it was held that no doubt the amount involved was large but this, by itself, would be no ground for refusing bail. In Abdul Haleem v. The State and another the dispute between the parties was over agricultural land. However litigation in respect of the same dispute was pending. Therefore it was held that the complaint under Sections 420 and 460 PPC instituted by the appellant in that case may remain stayed during the pendency of civil litigation between the parties.

5.The learned D.A.G, submitted that there is no bar to initiate a criminal proceedings even if a civil suit is pending. He further submitted that M/s. Mercury Corporation submitted their letter for payment on 12th September, 1995 and the amount was released to them under the orders of the applicant, without obtaining sanction from the competent authority, on 13th September, 1995 and no bank guarantee etc. Was taken to safeguard the interest of the Corporation. Even the converter was not supplied by the contractor as per its contractual obligation. Therefore according to the learned D.A.G, the amount of Rs. 40 million was misappropriated by the applicant in connivance with Director Finance (S.M.Abbasi) and other Officials of the Corporation and the contractor.

6.On careful examination I find no force in the submission of the learned defence counsel and the case law cited by him is also not attracted to the facts and circumstances of the instant case. So far the last two submissions are concerned, suffice it to observe that, regarding the first part of the FIR, it is for the relevant authorities to take suitable penal action, if allegedly It. Gen. (Rtd.) Sabeeh Qamaruz Zaman is the principal culprit and detention of the applicant under M. P.O. Has also no nexus with the present case. Now taking up the third submission there is no bar in law to civil and criminal actions continuing at the same time. In Muhammad Ahmed v. The State (1972 SCMR 85) it was held by the Hon'ble Supreme Court that there is no invariable rule that if subject-matter of proceedings is same in both the criminal case as well as civil suit the criminal proceedings should be postponed pending disposal of civil litigation. However in my humble view after recording of some evidence if it transpires that the proceedings before the Criminal Court are abuse of the process of Court the applicant can apply . For stay. Even the proceedings can be quashed by this Court in appropriate cases during the pendency of civil litigation (See Abdul Haleem v. The State and another (PLD 1982 488) and A Habib Ahmed v. M.K G. Scott Chriastan and 5 others (PLD 1992 SC 353). At the moment both the proceedings against the applicant are pending at the initial stages. Therefore in the absence of any relevant material on record it would be premature to consider favourably the submission to stay criminal proceedings particularly when no application has .Been made for stay or quashment of criminal proceedings. Since only the bail application is under consideration therefore the following matters are required to be considered for grant of bail:

(i)Whether there is or is not a reasonable ground for believing that the petitioner has committed the offence with which he is charged ?

(ii)The nature and the gravity of the charge.

(iii)The severity or the degree of the punishment which might follow in the circumstances of the case of conviction.

(iv)The danger of the applicant absconding if he is released on bail.

(v)The character, the means and the standing of the petitioner.

(vi)The danger of the witnesses being tampered with.

(vii)Opportunity to the applicant to operate his defence.

(viii)The period for which, the applicant has been in Jail and the likelihood of the trial not being concluded in the near future?

(ix)Whether the name or description of the accused appears in the FIR ?

(x)The period intervening between the occurrence of the incident and the lodging of the FIR.

(xi)Whether the accused is a previous convict ?

(xii)Whether the reasonable possibility of false implication of the applicant cannot be ruled out ? While following the above principles it would also the relevant to consider that our nation is overwhelmed with an avalanche of corruption under whose weight it is being relentlessly erushed. Man, philosophers have said, is born innocent, it is-the institutions of society that spoil him. Whatever the truth in the observations, we seem to have institutionalised corruption. The bloody putrescence of the virus oozes out of every pore of the body politic and every segment of national life, be it government, politics, business, law, medicine, health or education. The landmark judgment of the Hon'ble Supreme Court reported as Al-Jehad Trust through Raeesul Mujahideen Habib-ul- Wahab-ul- Khairi and others v, Federation of Pakistan and others (PLD 1996 SC 324) (popularly known as the Judges' case) has raised hopes that the Courts will now play a significant role in eradicating corruption and other social evils. Therefore, it is humbly submitted that in such a situation a more fragmatic approach than has been the case so far on the parts of the Courts is needed at the investigation as well as bail stages of corruption cases, because if the Courts show almost .Motherly leniency towards people accused of high corruption then it would be impossible to successfully investigate and help bringing the culprits to book or to check the ever increasing cancer of corruption.

7.The upshot of .The above discussion is that keeping in view the facts and circumstances of the case and on the basis of tentative assessment of the evidence available with the prosecution as Well as the principles summarised above Tam of the view that prima facie there is reasonable ground to believe that the applicant has committed the alleged offence. Therefore I am not inclined to take a lenient view to admit him to bail. Accordingly this application having no merit is dismissed with the observations that the applicant may repeat his bail application after some evidence is brought on record before the learned trial Court.